Tenth Circuit Affirms KDOT’s Right To Establish And Enforce Standards For Materials Used In Highway Construction

Friday, June 17 2016 1:15 PM

Charles Millsap and Lyndon Vix of Fleeson Gooing, in conjunction with attorneys from the Office of Chief Counsel for the Kansas Department of Transportation (KDOT), recently completed the successful defense of the Department in a federal lawsuit brought by Martin Marietta Materials. In Martin Marietta v. Kansas Dept. of Transportation, 810 F.3d 1161 (10th Cir. 2016), the federal appellate court affirmed the district court’s dismissal of the claims brought against the state agency. 953 F.Supp.2d 1176 (D. Kan. 2015).

KDOT has supervisory power over the roads and bridges in Kansas. It establishes quality requirements for materials used on Kansas road projects, and identifies quarries whose aggregate (sand, gravel, crushed stone and like materials mixed with cement to form concrete) has passed KDOT’s tests and places them on a list of pre-approved sources. Martin Marietta supplies limestone and other aggregates to contractors working on public and private projects. It is the second largest producer of aggregates in the country. After KDOT removed two Martin Marietta quarries from it pre-approved list of limestone aggregate supplies, Martin Marietta unsuccessfully sought pre- and post-deprivation hearings from KDOT.

Martin Marietta then sued KDOT and its officials in federal district court. It claimed losses of millions of dollars. Among its many claims were two asserted under the Fourteenth Amendment to the United States Constitution: (a) a property interest claim (a property interest in keeping its quarries on the KDOT approved source list); and (b) a liberty interest claim (damage to its reputation as a supplier of quality materials).

The Tenth Circuit found that KDOT did not violate Martin Marietta’s procedural due process rights by removing the two quarries from the approved source list. Aggregate suppliers such as Martin Marietta have no constitutionally-protected property interest in having their quarries included on KDOT’s list of pre-approved sources. And the court found that KDOT had not made defamatory statements about Martin Marietta. The court found that “KDOT performed tests on Martin Marietta’s two quarries, and it determined that the quarries’ aggregate failed those tests. KDOT then disseminated this information to the public. KDOT did not make any false statements.”

The court declined what it characterized as Martin Marietta’s invitation to have the court acts as a “super-KDOT.” In support of its declination, the court said: “We lack any scientific expertise to determine what aggregate builds safe roads, and we lack KDOT’s statutory responsibility for motorist or taxpayer safety. KDOT is in the best position to determine the level of error it will tolerate in D-cracking testing, and we refuse to question its decision.”

The Tenth Circuit therefore affirmed the district court’s dismissal, bringing the litigation to an end.